Livingston v. Dorgenois

• Decision Date: 18 February 1813
• Citation: 11 U.S. 577,3 L.Ed. 444,7 Cranch 577
• Parties: LIVINGSTON v. DORGENOIS
• Court: U.S. Supreme Court

11 U.S. 577

7 Cranch 577

3 L.Ed. 444

LIVINGSTON v. DORGENOIS.

February 18, 1813

Absent. LIVINGSTON, J. and TODD, J.

THIS was a writ of error to the District Court of the United States for the District of Orleans, in a suit brought in that Court, by Edward Livingston against F. I. Le Breton Dorgenois marshal of the territory of Orleans, according to the forms of the civil law as established in that territory.

The petition of E. Livingston stated, that one John Gravier, on the 30th of April, 1803, was an inhabitant of the province of Louisiana; that he was the owner and possessor of a plantation or parcel of land adjoining, and next above the city of New Orleans, and bounded in front on the river Mississippi, which had been uninterruptedly owned and possessed by himself, and those under whom he claimed, for upwards of eighty years. That the said plantation or parcel of land had then, to wit, on the said 30th day of April, and long before, been greatly increased by the alluvion of the said river, which had always, from the several periods of its increase, been considered, possessed, and lawfully held, as parcel of the said tract of land, by the said Gravier and those under whom he held.

That the mayor, aldermen, and inhabitants of the city of New Orleans having, under some pretence of title to the said alluvion, or to a servitude therein, committed divers trespasses on the said land, the said John Gravier filed his petition in the Superior Court of the territory of Orleans, being a Court of competent jurisdiction, and from whose judgment there is no appeal, praying for an injunction against the said trespasses, and that he might be quieted in the possession of the said land. And that such proceedings were had, in the said Court, on the said petition, that it was finally adjudged and decreed, that the said John Gravier should be quieted in his lawful enjoyment of the said alluvion, and that an injunction, before granted, should be made perpetual, which judgment was carried into execution. After which, the petitioner (Livingston) took possession under Gravier, of the property in question, which he held as the legal owner in fee, by virtue of sundry conveyances from Gravier, and others who legally held under him; and that the possession of Gravier, in which he was quieted by the said decree, was legally and uninterruptedly transmitted to the petitioner, Livingston, and that he held the same until the 25th of January, 1808, when he was forcibly dispossessed by the Defendant, the marshal of the district of Orleans, who still retains the possession thereof, contrary to law.

The petitioner then prays that, in the first instance, without prejudice to his further claims, he may be restored to the possession of which he has been illegally deprived, and may have such further and other relief as the nature of his case may require.

To this petition the Defendant answered, and pleaded in bar, that before and on the 25th of January, 1808, he was marshal of the district of Orleans, and in his official capacity received from the president of the United States, an instruction or mandate, to remove from the lands in question, all such persons as should be found thereon, and who should have taken possession thereof, or settled thereon since the 3d of March, 1807, which instruction or mandate was communicated to the Defendant officially, by the direction of the President of the United States, in a letter written by James Madison, then secretary of state, which letter is in the words and figures following, viz.

'Department of State, Nov. 30, 1807.

SIR,

In pursuance of the provisions of the act of Congress, 'to prevent settlements on lands ceded to the United States, until authorized by law,' I am directed by the president to instruct you to remove immediately from the land known and called by the name of the Batture, in front of the suburb St. Mary, of the city of New Orleans, which was ceded to the United States by the treaty with France, and the settlement of which has not been authorized by any law of the United States, all persens who shall be found on the same, and who shall have taken possession or settled thereon since the 3d day of March, in the year 1807. Should any aid be necessary you will call for the assistance of the good citizens of the district, as the posse comitatus, or civil power of the territory.

I have the honour to be,

Very respectfully, sir,

Your obedient servant,

JAMES MADISON.

Francis Joseph Le Breton Dorgenois, Esq. marshal of the Orleans territory.'

And that the Defendant did accordingly, on the said 25th day of January, as marshal as aforesaid, and in obedience to the said instruction or mandate of the president, remove the Plaintiff and his servants from the lands aforesaid, the same having been taken possession of by the Plaintiff since the 3d of March, 1807, which said removal is the same, which the Plaintiff has set forth in his petition, and this he is ready to verify, &c.

To this plea there was a general demurrer and joinder; but upon the day assigned for the argument, 'Tully Robinson, esq. attorney for the United States, moved the Court that the proceedings be stayed, upon a suggestion that the suit is fictitious and collusive; that the Defendant is entirely uninterested in the cause, not having (though impliedly admitting by the pleadings that he has) any right of property or possession in the tract or parcel of land called the Batture, but that the said suit is carried on for the sole purpose of affecting the interest of a third party, to wit, of the United States, and of obtaining the possession from them.' Whereupon sundry documents were filed in support of the suggestion, and against it; and the Plaintiff offered to consent that the United States should intervene in the cause, but the counsel with the attorney for the United States replied that the offer could not be accepted, because the United States could not be made Defendants in any case. The motion of the attorney for the United States was thereupon argued, and the Court having taken time to consider, and having also granted a re-hearing, ultimately de creed that the proceedings should be 'finally stayed;' whereupon the Plaintiff sued out his writ of error to the Supreme Court of the United States.

P. B. KEY, for the Plaintiff in error, contended,

1. That the suggestion of the district attorney ought not to have been received to stay the proceedings.

2. That the rights of the United States (if they had any) could not have been injured by a decision in this case.

3. That to protect the interest of the United States, they had a clear adequate remedy by intervention, as known and used in the civil law.

1. A proceeding so novel and extraordinary, and so pregnant with mischievous consequences, ought to be supported by clear law, or decided usage and practice.

If proceedings are to be stayed at the mere suggestion of interest in the United States, it will be in the power of the district attorney, at any time, to stay proceedings in any cause by such a suggestion.

There is neither statute law nor practice to justify such a proceeding, nor can it be sustained by analogy to those cases in which Courts of law have sometimes stay the proceedings at the suggestion of a third party. There is no case in which they have been stayed upon the mere allegation of the interest of such party, or upon the mere suggestion of collusion.

It is only in cases where the testimony leads to indecency, and is contra bonos mores; or where the peace of families, and the happiness and reputation of individuats are put to hazard by actions founded upon wagers made by indifferent persons, and where the injured party would be without remedy, that the Court will interfere to stay proceedings, as in the case of Da Costa v. Jones, Cowp. 729, and Cox v. Phillips. Ca. Temp. Hardw. 237.

Here it is a mere suggestion of property in the United States, who, if they have any right, have a remedy. That right, if any, cannot be affected by this suit.

2. The question before the Court upon the demurrer is, was the Defendant justified in removing the Plaintiff from his possession? If he was not, the Plaintiff is entitled to restoration to his possession with damages, but the right of the United States is not affected. If the Defendant was justified, then there is an end of the Plaintiff's case. The judgment in this case cannot be given in evidence against the United States. It is res inter alios acta.

If this 'suggestion' prevails, the Plaintiff is ruined, because the United States are not suable, and he has no redress, however illegal the conduct of the officer who removed him.

Whenever the United States have a right, they must prosecute for the recovery of it. There is no obstacle in the way. It is every days practice. In a case of trover for a ship between individuals, the United States would not be permitted to stay proceedings upon a suggestion that the suit was collusive—that neither of the parties had possession or property in the ship, but that she was ferfeited to the United States.

3. But the United States had a clear adequate remedy to protect their rights by intervention, as known and used in the civil law. In 2 Domat 676, the proceeding by intervention is defined. The petition of intervention ought to set out the interest of the party, with his proofs; the parties litigant are called upon to answer; and the party intervening is considered as Plaintiff. This is what the Plaintiff offered to permit the United 'States could not be made Defendant;' whereas the process of intervention would have made them 'Plaintiff. cess of intervention would have made them Plaintiff. But the reason is obvious; intervention would have obliged them to shew and establish their title; which they could not do, and therefore they resorted to this extraordinary mode of suggestion for the purpose of avoiding a judicial investigation of their right.

The consequences...